BRADLEY WEST, Petitioner,
v.
BASF CORPORATION and INDEMNITY INSURANCE CO. OF NORTH AMERICA, Respondents.
No. 16-0787
Appeals Board Utah Labor Commission
November 2, 2020
ORDER
ON MOTION FOR REVIEW
Kathleen Bounous, Chair
BASF
and its insurance carrier, Indemnity Insurance Co. of North
America, (collectively referred to as “BASF”) ask
the Appeals Board of the Utah Labor Commission to review
Administrative Law Judge Holley’s preliminary award of
permanent total disability compensation to Bradley West under
the Utah Workers’ Compensation Act, Title 34A, Chapter
2, and the Utah Occupational Disease Act, Title 34A, Chapter
3, Utah Code Annotated.
The
Appeals Board exercises jurisdiction over this motion for
review pursuant to §63G-4-301 of the Utah Administrative
Procedures Act, §34A-2-801(4) of the Utah Workers’
Compensation Act, and §34A-3-102 of the Utah
Occupational Disease Act.
BACKGROUND
AND ISSUES PRESENTED
Mr.
West claims workers’ compensation benefits, including
permanent total disability compensation, stemming from
occupational exposure between March 12, 2015, and March 6,
2016, and an accident that occurred on March 12, 2015, while
he was working for BASF. Mr. West’s claim for benefits
is based on respiratory conditions he attributes to the
occupational exposure and work accident in question. Judge
Holley held an evidentiary hearing and referred the medical
aspects of Mr. West’s claim to an impartial medical
panel. The medical panel determined that the 2015 work
accident medically caused Mr. West to develop chronic
bronchitis and the occupational exposure period medically
caused him to develop eosinophilic pneumonia. The panel
outlined the medical care necessary to treat Mr. West’s
respiratory conditions and assigned a 13% whole person
impairment rating for such conditions.
Judge
Holley relied on the medical panel’s conclusions over
BASF’s objection. Judge Holley concluded that Mr. West
was entitled to a preliminary award of permanent total
disability compensation among other benefits in light of the
evidence presented, which included a functional capacity
evaluation and testimony regarding his prospects for
vocational rehabilitation. BASF challenges Judge
Holley’s decision by arguing that it was error to rely
on the medical panel’s conclusions because they are not
based on reasonable medical probability. BASF also argues
that the medical panel’s conclusions are unreliable
because the panel members do not have the requisite expertise
to offer a qualified opinion. BASF submits that the opinions
of its medical consultants should be assigned more weight on
the issue of whether Mr. West’s condition is medically
causally connected to his occupational exposure in question.
BASF adds that it was error to award Mr. West permanent
partial disability compensation based on the medical
panel’s impairment rating because such rating assumes
Mr. West gave maximum effort but such effort could not be
confirmed.
FINDINGS
OF FACT
The
Appeals Board adopts Judge Holley’s findings of fact,
which are summarized as follows.
Background
Mr.
West was born in 1954. He graduated from high school but did
not attend college. Mr. West has worked in and around
auto-body repair and painting for almost his entire career,
beginning at Laurie Miller Pontiac where he prepared cars for
painting. He worked in that position from 1973 to 1978 before
working at Murray Automotive Center as an auto-body painter
and sander from 1978 to 1982. From 1982 to 1984, Mr. West
worked as a sales representative for Inmont Corporation and
from 1984 to 1986 he worked for Auto Body Supply as a
salesman. All of these positions required Mr. West to remain
on his feet throughout the workday and lift at least 70
pounds.
Mr.
West began working for BASF in 1986 after it acquired a
product line that had been sold by Inmont. He started out as
an entry level sales representative before becoming a senior
sales representative. Mr. West worked in that position until
2002, when he became an account representative. That position
required him to perform product demonstrations and prepare
presentations for clients as well as walk, kneel, and stand
for six to eight hours per day as well as lift up to 70
pounds. In 2015, Mr. West was employed as a regional
technical representative, which entailed many of the same
duties as an account representative as well as frequent
travel and demonstration of all aspects of auto-body
restoration including use of BASF’s computer systems.
Mr. West had previously been diagnosed with industrial asthma
since 1997 along with a deviated septum, sinus cyst,
bronchitis, and allergic rhinitis due to allergens.
Work
Accident and Exposure
On
March 12, 2015, Mr. West was working with coworkers to move
inventory from one warehouse to another. Mr. West reached
overhead to retrieve a gallon container of SB01 resin from a
shelf, but the lid on the container had not been secured and
the resin fell all over Mr. West’s body. He was taken
into the bathroom where his face was flushed with water for
20-30 minutes, but he had burning in his eyes,
“plugged” sinuses, rashes on his face and arms,
congestion, and coughing. Mr. West was taken to Rocky
Mountain Eye Care Associates immediately...
